Hill v. Beatty

McKee, J.: This was an action to recover an installment of rent alleged to be due and owing by the defendants on a contract of lease, dated April 15, 1880.

Defendants appeared and answered in the case, and judgment was rendered against them on April 14,1881. Six days afterwards their attorneys gave notice of motion for a new trial, and, on October 6, 1881, that motion was heard, upon a settled statement of the case, and denied. On the twenty-first of the same month the defendant, Leslie, gave notice of a motion to open the judgment and permit him to file a separate answer, upon the ground that the answer filed and the judgment taken in the case were the result of the mistake, inadvertence, surprise, or excusable neglect of himself and his co-defendant. It is out of this motion that the present con tention arises.

• But the mistake, inadvertence, surprise, or excusable neglect in the case, if any, was not attributable to Leslie. He, when a copy of the complaint and summons were personally served on him, sent them to his co-defendant, Beaty, and asked him to have the case properly defended. The latter wrote that that would be done, and, it seems, that he had covenanted to defend Leslie against any suits upon the lease. Upon that, Leslie gave no further attention to the case.

It does not appear that Leslie informed Beaty that he wanted any special defense interposed in the action. But Beaty knew that he himself only had renewed the lease, and that Leslie had not joined in the renewal. Yet, with full knowledge of the fact, Beaty neglected to state it to the attorneys whom he had employed to defend the case, and, in consequence, it was nob set up in the answer filed for himself and Leslie. On the contrary, the execution of the original lease on the fifteenth of April, 1879, and its subsequent renewal on the fifteenth of April, 1880, by both defendants, were admitted, and the only issue raised by the pleadings in [295]the case was, whether the demanded installment of rent was due and unpaid.

Under these circumstances, the neglect to set up in the answer any special defense which Leslie may have had, was chargeable to Beaty—it was not the neglect of Leslie. No cause is assigned which prevented Beaty from performing his duty, nor is any reason given why he did not perform it; his neglect, therefore, was not excusable—it was in fact wholly inexcusable; and as both defendants moved for a new trial in the case, and permitted the statutory time for opening the judgment on' the ground of neglect, mistake, etc., to expire, the present motion, if either parfcy was entitled to make it, after the denial of a motion for a new trial in the case, comes too late.